CONSTITUTIONAL LAW II
FREEDOM OF RELIGION
INTRODUCTION
· Two Clauses:
· The Establishment Clause (“Congress shall make no law respecting an establishment of religion”)
· Seems to hamper religion
· The Free Exercise Clause (“or prohibiting the free exercise thereof”)
· Protects religion
· Conflict between the two clauses
· E.g. a religious group might ask for a benefit. Giving the benefit might be an establishment clause problem while denying the benefit might be a free exercise problem
· When the two clauses conflict, the free exercise clause dominates (if required by the free exercise clause, it is not an establishment clause problem).
· Overlaps with free speech
· Levels of Scrutiny/Tests:
· Strict Scrutiny=government must show a compelling interest
· Intermediate Scrutiny=government must show a substantial basis
· Lowest level of scrutiny=government must show a rational basis
· Lemon Test (for the Establishment Clause). Three steps:
· Must have a secular, non-religious purpose
· Primary effect that does not advance or inhibit religion
· Must not foster excessive entanglement between government and religion
· Look for the test that the Court is using in each case.
· History
· American laws began with English Law
· Anglican Protestantism was National Religion in England
· Catholicism and other Protestant groups that were not Anglican were outlawed
· Puritans who came to the New World wanted to purify the national religion
· Towns or counties decided what the established church would be for the area
· Except in Massachusetts and Rhode Island
· Establishment meant:
· People were forced to go to that church, pay taxes for that church
· Couldn’t hold public office unless you were a good-standing member of that church
· Could get jailed for preaching something different than the established church
· “Wall of Separation” between Church and State
· Concept comes from a Thomas Jefferson letter
· Court followed this view for a while but now seems to be retreating from this view
· Questions/Concerns:
· Do we really need a strict separation between the church and state?
· Hasn’t our success as a nation been based on our religious belief, even though there are many different religions?
· Shouldn’t religious values be a part of government—what about the ethical side of the government?
· Are we teaching our children to devalue religion?
· Historical Application of the First Amendment
· Originally, the first amendment only applied to the federal government
· Now it applies to the states as well because it was incorporated into the concept of due process in the 14th amendment:
· Everson v. Board of Education (1947) (incorporated the establishment clause)
· Cantwell v. Connecticut (1940) ( incorporated the free exercise clause
· Defining “Religion”
· Difficult because attempts to define religion in terms of theological concepts risks establishment
· Only bona fide religious beliefs are protected under the First Amendment, but religion is defined broadly:
· Non-theistic beliefs are protected (don’t need to believe in a Supreme Being)
· Unorganized/Obscure Religions are protected. Even if it is only one person, still protected.
· Sincerity: belief must be sincere and genuine. The Court will not evaluate whether the belief is true or reasonable.
· If defined without religious values in mind, it is difficult to distinguish between religious and philosophical belief
· Examples:
· Congress’s definition for conscientious observer status (page 10
e land, and in effect to permit every citizen to become a law unto himself.”
· Braunfeld v. Brown (1961) (page 1078)
· Facts:
· Sunday Closing Laws
· Discount stores and malls started opening, so government tried to prevent this with Sunday Closing Laws that made it a criminal offense to be open on Sunday.
· Orthodox Jewish merchant argued that he should be able to close on Saturday instead of Sunday because the criminal statutes were harming them by forcing them to close for two days.
· Orthodox Jew
· Supreme Court determined that the Sunday Closing laws were acceptable because they served the purposed of making a day of rest for the people, who mostly took Sunday as the day of rest.
· Rule/Reasoning:
· Generally applicable laws that impose an “indirect burden on religious observance” are valid “unless the State may accomplish its purposes by means which do not impose such a burden.”
· Like in Reynolds, religious conduct must give way when it interferes with a generally applicable law.
· Shift from Reynolds:
· Different language: added unless the state may accomplish its purpose in a way that is less burdensome
· “In essence, from Reynolds to Braunfeld the Court moved from the position that general regulations that hinder religious conduct are always valid to a position that such regulations are valid unless there is a less burdensome means to achieve the state’s objective.”
· Sherbert v. Verner(1963) (page 1078)
· Facts:
